A Chicago ear, nose and throat doctor has become the focal point of the unusual product liability lawsuit of a Kansas woman who claims she was injured by an ear-cleaning procedure using a special candle.

“Ear-candling,” which has become a trendy alternative to Q-tips, involves inserting the narrow tip of a hollow conical candle into the ear. Advocates say the warmth and suction from the heat generated by the flame draws wax out of the ear canal.

The safety of the procedure is at issue in the suit filed by Anne Danaher, who alleges the ear candle she bought from a Wild Oats Markets health store in Kansas City is an unreasonably dangerous product that left her with a burned ear drum. She sued the store and Karen Kenney, the “ear-candler” who performed the procedure on her in 2006.

Danaher's expert witness is Dr. Richard J. Wiet, an otolaryngologist with a practice in Chicago who has been a vocal critic of ear-candling. “Ear candles are unreasonably dangerous products because of the potential for damage to the structure of the middle ear associated with their use,” he wrote in a report for Danaher.

Dr. Richard Wiet

But Wild Oats says Wiet's testimony should be excluded from the case because he has a “glaring lack of knowledge, training and education in the field of ear candles.” In a deposition, he acknowledged that Q-tips cause more injuries than ear candles on an annual basis.

“Dr. Wiet does not identify a specific design or manufacturing defect in the particular ear candle involved in plaintiff’s accident, which is a pre-requisite to establishing liability under Kansas law,” Wild Oats argues in a motion for summary judgment.

Danaher says ear candles are presumptively defective under Kansas law because they have not been approved by the Food and Drug Administration. And even without the presumption and Wiet's testimony, a jury could hold Wild Oats liable for failing to warn her of the dangers of ear candles.

“Defendant chose to sell a product intended to be placed in the human ear and set afire,” she said in a brief.

Ear-candling apparently originated in India or ancient Egypt. But Canada has banned the treatment and the FDA warned last year that ear candles “can cause serious injuries, even when used in accordance [with] manufacturers' directions.”

According to a study published in the journal Laryngoscope, no ear wax was removed during candling of test subjects and candle wax was actually deposited in some of the subjects' ears.

Danaher bought an ear candle made by Wally's Natural Products of Auburn, Calif., in 2003. She did not use it until three years later when Kenney, while treating her for discomfort in her right ear, allegedly “allowed the ear candle to burn down to within 3 inches of the tip at which time the Plaintiff felt hot wax roll into her ear.”

The specific defect of ear candles, Danaher argues, “is that they are not effective in treating any illnesses or condition of the ear and they create a risk, not necessarily apparent to the user, of serious injury due to hot wax dripping in the ear. Dr. Wiet’s testimony and opinion in this regard are factually supported and admissible ...”

Wild Oats contends Danaher is arguing, in effect, for strict liability. “Without identifying a specific defect in the ear candle [she used], the plaintiff would be able to establish the liability of Wild Oats solely based upon the fact that she sustained an injury through use of a product,” the company says.

As far as showing a failure to warn, it says, Danaher still needs expert testimony and Wiet “does not have an opinion regarding any instructions or warnings, or whether any instructions or warnings were either adequate or defective.”

Danaher's case could well go up in flames and, even if it doesn't, Wild Oats may not have to pay a judgment. It has countersued Wally's Natural for indemnification because Wally's is insured up to $1 million and Danaher cannot win an award of more than $300,000.

Kenney, meanwhile, has retained an “an experienced and certified ear candler,” Teede Stipich, as her expert.

By Matthew Heller
1/13/11